United States v. Chorney

Procedural entryThis page is a short order in United States v. Chorney. Read the opinion of the Court — 63 F.3d 78 →

Court of Appeals for the First Circuit·Decided October 29, 1996·No. 96-1187·Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 96-1187

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD F. CHORNEY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________

____________________

Before

Torruella, Chief Judge, ___________

Campbell, Senior Circuit Judge, ____________________

and Boudin, Circuit Judge. _____________

____________________

Scott A. Lutes for appellant. ______________
Seymour Posner, First Assistant United States Attorney, with whom ______________
Sheldon Whitehouse, United States Attorney, was on brief for the ___________________
United States.

____________________

OCTOBER 29, 1996
____________________

Per Curiam. On May 27, 1993, a jury in the federal __________

district court in Rhode Island found Harold Chorney guilty of

seven counts of making a false report and statement to a

federally insured bank in violation of 18 U.S.C. 1014.

United States v. Chorney, 63 F.3d 78, 80 (1st Cir. 1995). At _____________ _______

trial, the gravamen of the case against Chorney was that he

"engineered a false appraisal" in order to convince the bank

that the rare coins he offered as collateral were worth

vastly more than their actual value, thus enabling him to

obtain a series of loans, extensions and renewals that

totaled $2.5 million by May 1989. Chorney, 63 F.3d at 79-80. _______

On direct review, this court affirmed Chorney's

conviction and sentence. Chorney, 63 F.3d at 81, 83. While _______

the appeal was pending, Chorney filed a motion for a new

trial based on newly discovered evidence, Fed. R. Crim. P.

33, and supplemented the motion with claims of Brady and Fed. _____

R. Crim. P. 16 violations. The district court denied that

motion on January 22, 1996, and Chorney now appeals from the

denial.

At trial, critical testimony against Chorney was

provided by William Tebbetts, who appraised the coins in

question in 1985, and Ann Fiumefreddo, Chorney's secretary.

Tebbetts testified that Chorney gave him the money necessary

to purchase the business, renamed Mayflower Coin and Stamp

Company, that ultimately appraised the coins. Tebbetts

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examined hundreds of the coins pledged as collateral by

Chorney to Eastland Bank, and graded all of them between MS-

62 and MS-64. However, at Chorney's request, Tebbetts agreed

two months later to sign an appraisal letter written on

Mayflower letterhead which stated that all of the coins were

of substantially higher MS-65 "gem" quality.

Tebbetts testified that he signed the appraisal letter

to avoid losing his job. The letter did not reveal that

Chorney owned Mayflower and employed Tebbetts. Fiumefreddo,

who typed the letter at Chorney's direction, testified that

she asked Chorney whether it was appropriate to have one

company that he owned appraise another company that he owned.

Chorney responded, "You're better off not knowing or don't

ask questions; something to that effect." Chorney, 63 F.3d _______

at 79-80.

In his new trial motion, Chorney contended that the

original "collateral" coins were either removed and replaced

with coins of lesser value or mishandled and damaged, causing

them to lose value. To support his theories of switching or

mishandling, Chorney pointed to videotapes, still photographs

and a stenographic transcript of the August 1990 removal of

his company's assets by order of a bankruptcy trustee. He

also relied upon alleged discrepancies between different

inventories of the collateral coins which were held by the

bank.

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Chorney's position is that all of this evidence

constitutes newly discovered evidence. In addition, he

contends that the failure to provide the videotapes and

related records of the August 1990 coin transfer to the

defense involved violation by the government of its

disclosure duties under Brady v. Maryland, 373 U.S. 83, 87 _____ ________

(1963) and Fed. R. Crim. P. 16(a)(1)(C). The government

responds that it offered videotapes to Chorney's lawyer, who

chose not to view them.

In any case, the recorded August 1990 removal of

Chorney's business assets involved none of the collateral

coins at issue. The connection is simply Chorney's claim

that any government carelessness evident from the videotapes

and other evidence would suggest that the government's

movement of 953 collateral coins among bank branches on a

separate occasion (for valuation purposes in connection with

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USCA1 Opinion



                                [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1187



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  HAROLD F. CHORNEY,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                 ____________________



            Scott A. Lutes for appellant.
            ______________

            Seymour Posner, First Assistant  United States Attorney, with whom
            ______________

        Sheldon  Whitehouse, United  States  Attorney, was  on  brief for  the
        ___________________

        United States.


____________________



                                   OCTOBER 29, 1996

                                 ____________________



Per Curiam.   On May  27, 1993,  a jury  in the  federal
                 __________



            district court in Rhode Island found Harold Chorney guilty of



            seven  counts of  making a  false report  and statement  to a



            federally insured  bank in  violation  of 18  U.S.C.    1014.



            United States v. Chorney, 63 F.3d 78, 80 (1st Cir. 1995).  At
            _____________    _______



            trial, the gravamen of  the case against Chorney was  that he



            "engineered a false  appraisal" in order to convince the bank



            that the  rare  coins he  offered  as collateral  were  worth



            vastly  more than  their actual  value, thus enabling  him to



            obtain  a  series  of  loans, extensions  and  renewals  that



            totaled $2.5 million by May 1989.  Chorney, 63 F.3d at 79-80.
                                               _______



                 On   direct  review,   this  court   affirmed  Chorney's



            conviction and  sentence.  Chorney, 63 F.3d at 81, 83.  While
                                       _______



            the  appeal was  pending, Chorney  filed a  motion for  a new



            trial based  on newly discovered  evidence, Fed. R.  Crim. P.



            33, and supplemented the motion with claims of Brady and Fed.
                                                           _____



            R.  Crim. P. 16 violations.   The district  court denied that



            motion  on January 22, 1996, and Chorney now appeals from the



            denial.



                 At   trial,  critical  testimony   against  Chorney  was



            provided  by William  Tebbetts,  who appraised  the coins  in



            question in 1985,  and Ann Fiumefreddo, Chorney's  secretary.



            Tebbetts testified that Chorney  gave him the money necessary



            to purchase  the business,  renamed Mayflower Coin  and Stamp



            Company, that  ultimately  appraised  the  coins.    Tebbetts


-2-
                                         -2-



examined  hundreds  of the  coins  pledged  as collateral  by



            Chorney  to Eastland Bank, and graded all of them between MS-



            62 and MS-64.  However, at Chorney's request, Tebbetts agreed



            two  months  later to  sign  an appraisal  letter  written on



            Mayflower letterhead which stated that  all of the coins were



            of substantially higher MS-65 "gem" quality.



                 Tebbetts testified  that he signed the  appraisal letter



            to avoid  losing his  job.   The letter  did not reveal  that



            Chorney owned Mayflower and employed Tebbetts.   Fiumefreddo,



            who typed  the letter at Chorney's  direction, testified that



            she  asked Chorney  whether it  was  appropriate to  have one



            company that he owned appraise another company that he owned.



            Chorney responded,  "You're better  off not knowing  or don't



            ask questions; something  to that effect."   Chorney, 63 F.3d
                                                         _______



            at 79-80.



                 In  his new  trial  motion, Chorney  contended that  the



            original "collateral" coins were either removed and  replaced



            with coins of lesser value or mishandled and damaged, causing



            them to lose value.   To support his theories of switching or



            mishandling, Chorney pointed to videotapes, still photographs



            and a stenographic  transcript of the August  1990 removal of



            his  company's assets by order  of a bankruptcy  trustee.  He



            also  relied  upon  alleged  discrepancies  between different



            inventories of  the collateral coins  which were held  by the



            bank.


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                                         -3-



Chorney's  position  is   that  all  of  this   evidence



            constitutes  newly  discovered  evidence.    In addition,  he



            contends  that  the failure  to  provide  the videotapes  and



            related  records  of the  August  1990 coin  transfer  to the



            defense  involved   violation  by   the  government  of   its



            disclosure duties  under Brady v.  Maryland, 373 U.S.  83, 87
                                     _____     ________



            (1963)  and Fed.  R. Crim.  P. 16(a)(1)(C).    The government



            responds that it offered  videotapes to Chorney's lawyer, who



            chose not to view them.



                 In  any  case,  the  recorded  August  1990  removal  of



            Chorney's business  assets involved  none  of the  collateral



            coins at  issue.   The connection  is simply  Chorney's claim



            that any government carelessness  evident from the videotapes



            and  other  evidence  would  suggest  that  the  government's



            movement of  953 collateral coins  among bank  branches on  a



            separate occasion (for valuation purposes in  connection with



            Chorney's   bankruptcy   case)   probably  involved   similar



            carelessness and damage to the coins.



                 As for the inventory discrepancies--which do involve the



            inventory  coins--the  inference  is  also   extremely  thin.



            Although  Chorney claims  that there  were 141  discrepancies



            between  two different inventories (one by the FBI and one by



            Sotheby's),  it  appears  that  this  greatly overstates  the



            number.   But  in any case  even differences as  to 141 coins



            would  represent  less than  two  percent of  the  7820 coins


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                                         -4-



offered  as collateral for the bank loan and appraised as MS-



            65 for significantly more than their actual value.   



                 Chorney's Brady and Rule 16 claims, and his motion for a
                           _____



            new trial based on newly discovered evidence, all fail unless



            Chorney  shows that  the evidence  to which  he points  would



            likely produce a different result on retrial.   United States
                                                            _____________



            v.  Watson,  76 F.3d  4, 7  (1st  Cir. 1996)  (Brady); United
                ______                                     _____   ______



            States v. Hemmer, 729  F.2d 10, 13 (1st Cir.),  cert. denied,
            ______    ______                                ____________



            467 U.S. 1218 (1984)  (Rule 16); United States v.  Tibolt, 72
                                             _____________     ______



            F.3d  965,  971 (1st  Cir.  1995) (new  trial  motion), cert.
                                                                    _____



            denied), 116 S.  Ct. 2554 (1996).  Even if  we considered the
            ______



            issue of prejudice de novo (the standard of review is complex
                               _______



            and not worth pursuing  here), Chorney's showing of prejudice



            is patently inadequate.



                 As our brief (and  understated) description of the trial



            evidence shows,  the government  had a powerful  case against



            Chorney.   By contrast,  nothing in the  evidence now adduced



            suggests  that there  was  any massive  switch of  collateral



            coins or that they were damaged en masse during the course of
                                            ________



            some relocation.  The likelihood that this new evidence would



            have altered the outcome of the trial approaches zero.



                 Affirmed.
                 _________


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                                         -5-

United States v. Chorney, (1st Cir. 1996).

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Brady v. Maryland

373 U.S. 83 (Supreme Court, 1963)

United States v. Chorney

63 F.3d 78 (First Circuit, 1995)

United States v. Watson

76 F.3d 4 (First Circuit, 1996)

Opinion

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